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PARLIAMENT OF VICTORIA
Retail Leases (Amendment) Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Principal Act 2
PART 2--AMENDMENT OF RETAIL LEASES ACT 2003 3
4. Definitions 3
5. Meaning of "retail premises" 3
6. Minister may make determinations 4
7. New section 7 substituted 5
7. When retail premises lease is entered into or assigned 5
8. Meaning of "renewal" of a lease 5
9. Application if lease term of less than a year 5
10. Copy of lease to be provided at negotiation stage 5
11. Landlord's disclosure statement 6
12. Minimum 5 year term 6
13. Tenant to be given copy of lease 8
14. Key-money and goodwill payments prohibited 8
15. Security deposits 8
16. Small Business Commissioner to be notified of lease 9
17. Landlord's disclosure on renewal of lease 9
18. Obligation to notify tenant of option to renew 9
19. Rent reviews generally 9
20. Rent reviews based on current market rent 10
21. Confidentiality of information supplied to valuer 10
22. Capital costs not recoverable 10
23. Limitation on recovery of management fees 11
24. Recovery of land tax 11
25. Landlord's liability for repairs 11
26. Relocation of the tenant's business 12
27. Demolition 12
28. When the landlord can withhold consent to an assignment 13
29. Procedure for obtaining consent to assignment 13
30. Protection of assignors and guarantors 13
31. Notice of the landlord's intentions concerning renewal 13
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551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Clause Page
32. Unconscionable conduct of a landlord 14
33. Unconscionable conduct of a tenant 14
34. Meaning of "retail tenancy dispute" 14
35. Functions of Small Business Commissioner 14
36. Referral of retail tenancy disputes for alternative dispute
resolution 15
37. New section 94A inserted 15
94A. Section 146 of the Property Law Act 1958 applies to
retail premises leases 15
38. New section 97A inserted 15
97A. Validation of certain instruments 15
39. Definitions 16
40. Rent 16
41. Notice of the landlord's intention concerning renewal 17
42. Options to renew 17
43. Landlord's liability for repairs 18
44. Notification of amount of land tax 20
PART 3--AMENDMENT OF RETAIL TENANCIES REFORM
ACT 1998 21
45. Definitions 21
46. Retail premises lease 21
47. Disclosure on renewal of lease 22
48. Disclosure to assignees 23
PART 4--AMENDMENT OF RETAIL TENANCIES ACT 1986 25
49. Definitions 25
50. New section 14AA inserted into the Retail Tenancies
Act 1986 25
14AA. Notice of the landlord's intentions concerning renewal 25
PART 5--AMENDMENT OF PROPERTY LAW ACT 1958 27
51. Amendment to section 146 of the Property Law Act 1958 27
PART 6--REPEAL OF SMALL BUSINESS VICTORIA
(REPEAL) ACT 1996 29
52. Repeal of Small Business Victoria (Repeal) Act 1996 29
ENDNOTES 30
ii
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
PARLIAMENT OF VICTORIA
A BILL
to amend the Retail Leases Act 2003, the Retail Tenancies Reform
Act 1998, the Retail Tenancies Act 1986 and the Property Law Act
1958 and to repeal the Small Business Victoria (Repeal) Act 1996
and for other purposes.
Retail Leases (Amendment) Act 2005
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to make miscellaneous amendments to the
Retail Leases Act 2003, the Retail
5
Tenancies Reform Act 1998 and the Retail
Tenancies Act 1986;
1
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Retail Leases (Amendment) Act 2005
Act No.
Part 1--Preliminary
s. 2
(b) to amend section 146 of the Property Law
Act 1958 in relation to a breach of a lease
amounting to repudiation;
(c) to repeal the Small Business Victoria
(Repeal) Act 1996.
5
2. Commencement
(1) Sections 1, 3, 12(7), 16, 17, 23, 37, 51 and 52 and
this section come into operation on the day after
the day on which this Act receives the Royal
Assent.
10
(2) Part 4 is deemed to have come into operation at
the last moment of 30 June 1998.
(3) Section 45(2) is deemed to have come into
operation on 1 July 1998.
(4) Sections 39, 40, 41, 42 and 43 are deemed to have
15
come into operation on 15 April 2003.
(5) Part 3 (other than section 45(2)) is deemed to have
come into operation at the last moment of
30 April 2003.
(6) The remaining provisions of this Act are deemed
20
to have come into operation on 1 May 2003.
3. Principal Act
See: In this Act, the Retail Leases Act 2003 is called
Act No.
the Principal Act.
4/2003
and
amending
Act Nos
114/2003 and
18/2005.
LawToday:
www.dms.
dpc.vic.
gov.au
__________________
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 4
PART 2--AMENDMENT OF RETAIL LEASES ACT 2003
4. Definitions
In section 3 of the Principal Act insert the
following definition--
' "accounting period", in relation to a retail
5
premises lease, means the period of
12 months specified in the lease as the
accounting period for the purposes of the
lease;'.
5. Meaning of "retail premises"
10
(1) In section 4(1) of the Principal Act, for "or a part
of premises" substitute "not including any area
intended for use as a residence".
(2) In section 4(1) of the Principal Act omit "or part".
(3) For section 4(2)(d)(i) of the Principal Act
15
substitute--
"(i) a body corporate whose securities are listed
on a stock exchange, outside Australia and
the external territories, that is a member of
the World Federation of Exchanges; or".
20
(4) In section 4(2)(f) of the Principal Act, for
"applies." substitute "applies;".
(5) After section 4(2)(f) of the Principal Act insert--
"(g) premises the tenant of which is a kind of
tenant that the Minister determines under
25
section 5 is a tenant to which this paragraph
applies;
(h) premises the lease relating to which is a kind
of lease that the Minister determines under
section 5 is a lease to which this paragraph
30
applies.".
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 6
(6) For section 4(3)(b) of the Principal Act
substitute--
"(b) the outgoings, as estimated by the landlord,
to which the tenant is liable to contribute
under the lease; and
5
Note: Section 46 requires the landlord to give the
tenant a written estimate of the outgoings to
which the tenant is liable to contribute.".
6. Minister may make determinations
(1) In section 5(1)(c) of the Principal Act, for
10
"applies." substitute "applies; or".
(2) After section 5(1)(c) of the Principal Act insert--
"(d) determine that a kind of tenant is a tenant to
which section 4(2)(g) applies; or
(e) determine that a kind of lease is a lease to
15
which section 4(2)(h) applies.".
(3) After section 5(1) of the Principal Act insert--
"(1A) An instrument made under sub-section (1)
may leave any matter to be certified by a
Minister.
20
(1B) An instrument made under sub-section (1)
may provide that it has effect on and from
1 May 2003 or such later date (whether
before, on or after the date on which the
instrument is made) as is specified in the
25
instrument as the date on which it comes into
effect.".
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 7
7. New section 7 substituted
For section 7 of the Principal Act substitute--
"7. When retail premises lease is entered into
or assigned
For the purposes of this Act, a retail premises
5
lease is entered into or assigned when--
(a) under the lease or assignment, the
tenant enters into possession of the
premises with the consent of the
landlord; or
10
(b) under the lease or assignment, the
tenant begins to pay rent for the
premises; or
(c) the lease or assignment has been signed
by all of the parties to it--
15
whichever first occurs.".
8. Meaning of "renewal" of a lease
In section 9(1)(b) of the Principal Act, after
"lease" (where first occurring) insert "on
substantially the same terms and conditions,
20
except as to rent,".
9. Application if lease term of less than a year
In section 12(2) of the Principal Act--
(a) after "under the lease" insert "after the
commencement of this section";
25
(b) after "one year" (where thirdly occurring)
insert "after that commencement".
10. Copy of lease to be provided at negotiation stage
At the end of section 15 of the Principal Act
insert--
30
"(2) Sub-section (1) does not apply to a renewal
of a lease.".
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 11
11. Landlord's disclosure statement
(1) After section 17(1) of the Principal Act insert--
"(1A) In the application of sub-section (1) to a sub-
lease, a tenant who has been given a
disclosure statement concerning a head-lease
5
is only required to give a sub-tenant--
(a) a copy of that disclosure statement; and
(b) details of any changes of which the
tenant is aware, or could reasonably be
expected to be aware, that have affected
10
the information in the disclosure
statement since it was given to the
tenant.".
(2) In section 17(4) of the Principal Act, for "that
date" substitute "the date on which the premises
15
are available for handover.".
(3) In section 17(6)(b) of the Principal Act, after
"copy of the" insert "proposed".
(4) After section 17(6) of the Principal Act insert--
"(7) If a tenant has been given the disclosure
20
statement before entering into an agreement
for a retail premises lease, the landlord is not
required to give a further disclosure
statement before subsequently entering into a
retail premises lease if that lease is
25
substantially in accordance with the earlier
agreement for the lease.".
12. Minimum 5 year term
(1) In the note at the foot of section 21(1) of the
Principal Act, after "term" insert "if, for example,
30
there has been default, relocation, demolition or
damage to the retail premises".
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 12
(2) After section 21(2) of the Principal Act insert--
"(2A) In applying sub-section (1) to a retail
premises lease to which this Act applies
because of section 12(2), account must be
taken of any period during which the tenant
5
was continuously entitled to possession of
the retail premises before the day on which
this Act first applied to the lease.
Note: Section 8 provides that an assignment of a
10 retail premises lease is taken to be a
continuation of that lease.".
(3) In section 21(5)(a) of the Principal Act, for
"tenant's request" substitute "request of the tenant
or prospective tenant".
(4) In section 21(5)(a)(ii) of the Principal Act for
15
"of a notice" substitute "to the landlord of a copy
of the certificate".
(5) In section 21(5)(b) of the Principal Act for
"written notice waiving the application of this
section to the lease" substitute "copy of the
20
certificate".
(6) In section 21(5) and (6) of the Principal Act, after
"tenant" (wherever occurring) insert
"or prospective tenant".
(7) After section 21(5) of the Principal Act insert--
25
"(5A) The Small Business Commissioner--
(a) must consider a request under sub-
section (5) made by a tenant or a
prospective tenant before a lease is
entered into and within 90 days after a
30
lease is entered into; and
(b) may consider a request made at any
other time under sub-section (5).".
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 13
(8) After section 21(6) of the Principal Act insert--
"(7) If the term of a lease is extended under this
section and no provision is made in the lease
for a review of the rent payable in respect of
the extended period, then the lease is taken to
5
provide for a rent review to be made on the
basis of the current market rent of the
premises as at the beginning of that period.
Note: For reviews based on the current market rent of
10 the retail premises, see section 37.".
13. Tenant to be given copy of lease
(1) In section 22(1) of the Principal Act, after
"28 days" insert ", or such other period as is
agreed in writing between the landlord and the
tenant,".
15
(2) In section 22(2)(a) of the Principal Act, after
"lease" insert "signed by the landlord and the
tenant".
14. Key-money and goodwill payments prohibited
For section 23(4)(b) of the Principal Act
20
substitute--
"(b) otherwise recovered by the tenant from the
landlord as determined under Part 10
(Dispute Resolution).".
15. Security deposits
25
(1) In section 24(1)(c) of the Principal Act, for
"lease." substitute "lease; and".
(2) After section 24(1)(c) of the Principal Act
insert--
"(d) if the tenant performs all of the tenant's
30
obligations under the lease the landlord must
return the security deposit to the tenant as
soon as practicable after the lease ends.".
(3) Section 24(2) of the Principal Act is repealed.
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 16
16. Small Business Commissioner to be notified of lease
(1) In section 25 of the Principal Act, after "parties to
it," insert "or renewed,".
(2) After section 25(c) of the Principal Act insert--
"(ca) the date when the lease was signed by all of
5
the parties to it, or renewed; and".
17. Landlord's disclosure on renewal of lease
(1) In section 26(1) of the Principal Act, for "at least
14 days" substitute "no later than 14 days".
(2) For section 26(3) of the Principal Act
10
substitute--
"(3) If the tenant has not been given the
disclosure statement before the expiration of
the relevant period specified in sub-
section (1), the tenant may, no later than
15
90 days after the expiration of the relevant
period, give the landlord a written notice that
the tenant has not been given the disclosure
statement.".
18. Obligation to notify tenant of option to renew
20
In section 28(2)(c) of the Principal Act, for "at any
time before the landlord notifies the tenant as
required, the tenant" substitute "the tenant,
whether or not the landlord has by then notified
the tenant as required,".
25
19. Rent reviews generally
(1) In the note at the foot of section 35(2) of the
Principal Act, for "section 36" substitute
"section 37".
(2) In section 35(7) of the Principal Act, after
30
"sub-section (2)" insert "or is void under sub-
section (6)".
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 20
20. Rent reviews based on current market rent
For section 37(7) of the Principal Act
substitute--
"(7) The specialist retail valuer--
(a) must carry out the valuation within
5
45 days after accepting the
appointment, or within such longer
period as may be agreed between the
landlord and tenant, or if there is no
agreement, as determined in writing by
10
the Small Business Commissioner; and
(b) may seek to enforce under Part 10
(Dispute Resolution) an obligation of
the landlord under sub-section (4).".
21. Confidentiality of information supplied to valuer
15
In section 38(1) of the Principal Act, for
"section 36" substitute "section 37".
22. Capital costs not recoverable
(1) In section 41 of the Principal Act, for
"A provision" substitute "Subject to sub-
20
section (2), a provision".
(2) At the end of section 41 of the Principal Act
insert--
"(2) Sub-section (1) does not operate to render
void a provision in a retail premises lease
25
requiring the tenant to undertake capital
works at the tenant's own cost.".
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 23
23. Limitation on recovery of management fees
(1) For section 49(1)(a) of the Principal Act
substitute--
"(a) the management fees relate to the
management of the building in which the
5
retail premises are located or, if the retail
premises are located in a retail shopping
centre, that centre; and".
(2) After section 49(5) of the Principal Act insert--
"(6) For the purposes of sub-sections (2) and (3)
10
only, the amount for management fees does
not include salaries and other administrative
costs related to the operation of the building
in which the retail premises are located or, if
the retail premises are located in a retail
15
shopping centre, in that centre.".
24. Recovery of land tax
(1) In section 50 of the Principal Act, after "landlord"
insert "or head landlord".
(2) At the end of section 50 of the Principal Act
20
insert--
"(2) Sub-section (1) does not apply, in the case of
a lease entered into at any time on or after
1 May 2003 and before 1 July 2003, in
respect of any period before 1 July 2003.".
25
25. Landlord's liability for repairs
(1) In section 52(2) of the Principal Act, for "good
repair" substitute "a condition consistent with the
condition of the premises when the retail premises
lease was entered into".
30
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 26
(2) In section 52(2) of the Principal Act--
(a) for "structure of, or fixtures" substitute
"structure of, and fixtures";
(b) for "plant or equipment" substitute "plant
and equipment";
5
(c) for "fittings or fixtures" substitute "fittings
and fixtures".
(3) In section 52(3) of the Principal Act omit
"in good repair".
(4) In section 52(4) of the Principal Act, after
10
"responsible" insert "under this section or under
the terms and conditions of the lease".
(5) In section 52(5)(b) of the Principal Act, after
"repairs" insert "and may not recover that cost or
any part of it as an outgoing".
15
(6) At the foot of section 52(5) of the Principal Act
insert--
"Note: Section 39 regulates the ability of the landlord to
recover outgoings (including the cost of repairs).
20 Section 41 provides that capital costs are not
recoverable from a tenant.".
26. Relocation of the tenant's business
In section 55(3) of the Principal Act, for
"alternative comparable" substitute "reasonably
comparable alternative".
25
27. Demolition
In section 56(4) of the Principal Act, after
"sub-section (2)," insert "or by the tenant in
accordance with sub-section (3),".
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 28
28. When the landlord can withhold consent to an
assignment
In section 60(1)(d) of the Principal Act, before
"the proposed" (where first occurring) insert
"the assignment is in connection with a lease of
5
retail premises that will continue to be used for the
carrying on of an ongoing business and".
29. Procedure for obtaining consent to assignment
(1) Section 61(4) of the Principal Act is repealed.
(2) After section 61(5) of the Principal Act insert--
10
"(5A) If the assignment is in connection with the
lease of retail premises that will continue to
be used for the carrying on of an ongoing
business, the tenant must give the landlord
and the proposed assignee a disclosure
15
statement in the form prescribed by the
regulations (but the layout of the statement
need not be the same as the prescribed
disclosure statement).".
30. Protection of assignors and guarantors
20
In section 62(2) of the Principal Act, after
"liable to" insert "perform any obligations under
the lease or to".
31. Notice of the landlord's intentions concerning
renewal
25
In section 64(5) of the Principal Act, for "at any
time before the landlord gives the tenant a notice"
substitute "whether or not the landlord has given
the tenant a notice as required".
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 32
32. Unconscionable conduct of a landlord
(1) In section 77(1) of the Principal Act--
(a) after "retail premises lease" insert "or a
proposed retail premises lease";
(b) after "the lease" insert "or proposed lease".
5
(2) In section 77(2)(d)(ii) of the Principal Act, for
"5 years" substitute "the minimum period
provided by section 21".
33. Unconscionable conduct of a tenant
In section 78(1) of the Principal Act--
10
(a) after "retail premises lease" insert "or a
proposed retail premises lease";
(b) after "the lease" insert "or proposed lease".
34. Meaning of "retail tenancy dispute"
In section 81(2) of the Principal Act, for
15
"section 34 or 37" substitute "section 34, 35 or 37
of this Act or under section 12A or 13A of the
Retail Tenancies Reform Act 1998 or section 10
or 11A of the Retail Tenancies Act 1986".
35. Functions of Small Business Commissioner
20
(1) In section 84(1)(g) of the Principal Act omit
"for the purposes only of the Commissioner
performing his or her functions under this Act,".
(2) After section 84(1) of the Principal Act insert--
"(1A) The Small Business Commissioner may use
25
a register created and maintained under sub-
section (1)(g) for the purposes only of the
performance by the Commissioner of his or
her functions under this or any other Act.".
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 36
36. Referral of retail tenancy disputes for alternative
dispute resolution
After section 86(2) of the Principal Act insert--
"(2A) The Small Business Commissioner may join
any person that he or she considers it
5
appropriate to join as a party to the
mediation.".
37. New section 94A inserted
After section 94 of the Principal Act insert--
"94A. Section 146 of the Property Law Act 1958
10
applies to retail premises leases
To avoid doubt, section 146 of the Property
Law Act 1958 applies to a retail premises
lease.
15 Note: Section 146 of the Property Law Act 1958
provides that a lessor must give a lessee notice
before exercising a right of re-entry or
forfeiture.".
38. New section 97A inserted
After section 97 of the Principal Act insert--
20
"97A. Validation of certain instruments
An instrument made under section 5(1)
before the day on which the Retail Leases
(Amendment) Act 2005 received the Royal
Assent that would have been validly made
25
had section 6 of that Act been in operation at
the time at which the instrument was made
or purportedly made has, and is deemed
always to have had, the same force and effect
as it would have had if section 6 of that Act
30
had been in operation at the time at which
the instrument was made or purportedly
made.".
15
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 39
39. Definitions
(1) In section 100(1) of the Principal Act, the
definition of "prospective tenant" proposed to be
inserted in the Retail Tenancies Reform Act
1998 is repealed.
5
(2) Section 100(2) of the Principal Act is repealed.
40. Rent
(1) In section 103 of the Principal Act, for the
proposed new section 12A(7) of the Retail
Tenancies Reform Act 1998 substitute--
10
"(7) The specialist retail valuer--
(a) must carry out the valuation within
45 days after accepting the
appointment, or within such longer
period as may be agreed between the
15
landlord and tenant, or if there is no
agreement, as determined in writing by
the Small Business Commissioner; and
(b) may seek to enforce under Part 10 of
the Retail Leases Act 2003 (Dispute
20
Resolution) an obligation of the
landlord under sub-section (4).".
(2) In section 103 of the Principal Act, in the
proposed new section 13(4)(k) of the Retail
Tenancies Reform Act 1998, for "Public
25
Lotteries Act 2000" substitute "Gambling
Regulation Act 2003".
(3) In section 113 of the Principal Act, in the
proposed new section 11(4)(k) of the Retail
Tenancies Act 1986, for "Public Lotteries Act
30
2000" substitute "Gambling Regulation Act
2003".
16
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 41
41. Notice of the landlord's intention concerning
renewal
In section 104 of the Principal Act, in the
proposed new section 16(5) of the Retail
Tenancies Reform Act 1998, for "at any time
5
before the landlord gives the tenant a notice"
substitute "whether or not the landlord has given
the tenant a notice as required".
42. Options to renew
(1) In section 105 of the Principal Act, after the
10
proposed new section 18(3) of the Retail
Tenancies Reform Act 1998 insert--
"(3A) If a retail premises lease contains an option
exercisable by the tenant to renew the lease
for a further term, the only circumstances in
15
which the option is not exercisable is if--
(a) the tenant has not remedied any default
under the lease about which the
landlord has given the tenant written
notice; or
20
(b) the tenant has persistently defaulted
under the lease throughout its term and
the landlord has given the tenant
written notice of the defaults.".
(2) In section 105 of the Principal Act, in the
25
proposed new section 18(4)(c) of the Retail
Tenancies Reform Act 1998, for "at any time
before the landlord notifies the tenant as required,
the tenant" substitute "the tenant, whether or not
the landlord has by then notified the tenant as
30
required,".
17
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 43
(3) In section 114 of the Principal Act, after the
proposed new section 14(3) of the Retail
Tenancies Act 1986 insert--
"(3A) If a retail premises lease contains an option
exercisable by the tenant to renew the lease
5
for a further term, the only circumstances in
which the option is not exercisable is if--
(a) the tenant has not remedied any default
under the lease about which the
landlord has given the tenant written
10
notice; or
(b) the tenant has persistently defaulted
under the lease throughout its term and
the landlord has given the tenant
written notice of the defaults.".
15
(4) In section 114 of the Principal Act, in the
proposed new section 14(4)(c) of the Retail
Tenancies Act 1986, for "at any time before the
landlord notifies the tenant as required, the tenant"
substitute "the tenant, whether or not the landlord
20
has by then notified the tenant as required,".
43. Landlord's liability for repairs
(1) In section 107 of the Principal Act, in the
proposed new section 25(2) of the Retail
Tenancies Reform Act 1998--
25
(a) for "good repair" substitute "a condition
consistent with the condition of the premises
when the retail premises lease was entered
into";
(b) for "structure of, or fixtures" substitute
30
"structure of, and fixtures";
(c) for "plant or equipment" substitute "plant
and equipment";
(d) for "fittings or fixtures" substitute "fittings
and fixtures".
35
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Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 43
(2) In section 107 of the Principal Act, in the
proposed new section 25(3) of the Retail
Tenancies Reform Act 1998 omit "in good
repair".
(3) In section 107 of the Principal Act, in the
5
proposed new section 25(4) of the Retail
Tenancies Reform Act 1998, after "responsible"
insert "under this section or under the terms and
conditions of the lease".
(4) In section 107 of the Principal Act, in the
10
proposed new section 25(5)(b) of the Retail
Tenancies Reform Act 1998, after "repairs"
insert "and may not recover that cost or any part
of it as an outgoing".
(5) In section 116 of the Principal Act, in the
15
proposed new section 17B(2) of the Retail
Tenancies Act 1986--
(a) for "good repair" substitute "a condition
consistent with the condition of the premises
when the retail premises lease was entered
20
into";
(b) for "structure of, or fixtures" substitute
"structure of, and fixtures";
(c) for "plant or equipment" substitute "plant
and equipment";
25
(d) for "fittings or fixtures" substitute "fittings
and fixtures".
(6) In section 116 of the Principal Act, in the
proposed new section 17B(3) of the Retail
Tenancies Act 1986 omit "in good repair".
30
(7) In section 116 of the Principal Act, in the
proposed new section 17B(4) of the Retail
Tenancies Act 1986, after "responsible" insert
"under this section or under the terms and
conditions of the lease".
35
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551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Retail Leases (Amendment) Act 2005
Act No.
Part 2--Amendment of Retail Leases Act 2003
s. 44
(8) In section 116 of the Principal Act, in the
proposed new section 17B(5)(b) of the Retail
Tenancies Act 1986, after "repairs" insert
"and may not recover that cost or any part of it as
an outgoing".
5
44. Notification of amount of land tax
(1) In section 121 of the Principal Act, for "lease"
(wherever occurring) substitute "retail premises
lease".
(2) In section 121 of the Principal Act, after
10
"landlord" (wherever occurring) insert "or head
landlord".
(3) In section 121(3) of the Principal Act, after
"section 46" insert "of this Act, section 20A of
the Retail Tenancies Reform Act 1998 or
15
section 14A of the Retail Tenancies Act 1986".
__________________
20
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Retail Leases (Amendment) Act 2005
Act No.
Part 3--Amendment of Retail Tenancies Reform Act 1998
s. 45
PART 3--AMENDMENT OF RETAIL TENANCIES REFORM
ACT 1998
45. Definitions
(1) In section 3(1) of the Retail Tenancies Reform
Act 1998, insert the following definition--
5
' "accounting period", in relation to a retail
premises lease, means the period of
12 months specified in the lease as the
accounting period for the purposes of the
lease;'.
10
(2) In section 3(1) of the Retail Tenancies Reform
Act 1998, insert the following definition--
' "prospective tenant", in relation to a lease
entered into under an option provided under
a retail premises lease to which the Retail
15
Tenancies Act 1986 applied (a 1986 lease),
includes a tenant under the 1986 lease;'.
46. Retail premises lease
After section 8(13) of the Retail Tenancies
Reform Act 1998 insert--
20
"(14) Sub-section (2) ceases to apply on 1 May
2006.
(15) Unless sub-section (16) applies, a tenant to
whom sub-section (2) applied immediately
before 1 May 2006 will be liable on and after
25
1 May 2006 for any rent attributable to the
period referred to in sub-section (2)(b).
(16) Nothing in sub-section (14) or (15) affects
any right of a tenant under sub-section (2) if
the tenant before 1 May 2006--
30
(a) withheld payment of the rent in
accordance with sub-section (2)(a); or
21
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Retail Leases (Amendment) Act 2005
Act No.
Part 3--Amendment of Retail Tenancies Reform Act 1998
s. 47
(b) commenced proceedings to recover the
rent for which the tenant was not liable
under sub-section (2)(b); or
(c) commenced a retail tenancy dispute
under Part 10 of the Retail Leases Act
5
2003 in respect of that right.
(17) The amendments made to this section by
section 46 of the Retail Leases
(Amendment) Act 2005 only have effect
from 1 May 2006.".
10
47. Disclosure on renewal of lease
After section 17(3) of the Retail Tenancies
Reform Act 1998 insert--
"(4) Sub-section (2) ceases to apply on 1 May
2006.
15
(5) Unless sub-section (6) applies, a tenant to
whom sub-section (2) applied immediately
before 1 May 2006 will be liable on and after
1 May 2006 for any rent attributable to the
period referred to in sub-section (2)(b).
20
(6) Nothing in sub-section (4) or (5) affects any
right of a tenant under sub-section (2) if the
tenant before 1 May 2006--
(a) withheld payment of the rent in
accordance with sub-section (2)(a); or
25
(b) commenced proceedings to recover the
rent for which the tenant was not liable
under sub-section (2)(b); or
(c) commenced a retail tenancy dispute
under Part 10 of the Retail Leases Act
30
2003 in respect of that right.
22
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Retail Leases (Amendment) Act 2005
Act No.
Part 3--Amendment of Retail Tenancies Reform Act 1998
s. 48
(7) The amendments made to this section by
section 47 of the Retail Leases
(Amendment) Act 2005 only have effect
from 1 May 2006.
5 Note: This section only applies to leases renewed
before the commencement of the Retail
Leases Act 2003: see section 11 of the Retail
Leases Act 2003.".
48. Disclosure to assignees
For section 23(4) of the Retail Tenancies Reform
10
Act 1998 substitute--
'(4) If the assignee of the retail premises lease
has not been given a disclosure statement
before the assignment, the assignee may give
the landlord no later than 90 days after the
15
lease is assigned, a written notice that the
assignee has not been given the disclosure
statement.
(5) If an assignee gives the landlord a notice in
accordance with sub-section (4), the assignee
20
may withhold payment of the rent until the
landlord gives the tenant referred to in sub-
section (1) a copy of the disclosure
statement, and the assignee is not liable to
pay rent attributable to the period during
25
which the landlord has not given the tenant a
copy of the disclosure statement.
(6) Sub-sections (4) and (5) do not to apply in
respect of the assignment of a retail premises
lease before the effective date.
30
(7) Unless sub-section (8) applies an assignee of
a retail premises lease assigned before the
effective date will be liable on and after that
date for any rent attributable to the period
during which the landlord had not given the
35
tenant referred to in sub-section (1) a copy of
the disclosure statement.
23
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Retail Leases (Amendment) Act 2005
Act No.
Part 3--Amendment of Retail Tenancies Reform Act 1998
s. 48
(8) Nothing in sub-section (6) or (7) affects any
right of an assignee under sub-section (4)
(as in force before the commencement of
section 48 of the Retail Leases
(Amendment) Act 2005) if the assignee
5
before the effective date--
(a) withheld payment of the rent in
accordance with sub-section (4); or
(b) commenced proceedings to recover the
rent for which the assignee was not
10
liable under sub-section (4); or
(c) commenced a retail tenancy dispute
under Part 10 of the Retail Leases Act
2003 in respect of that right.
(9) In this section "effective date" means the
15
day after the day that the Retail Leases
(Amendment) Act 2005 receives Royal
Assent.
(10) The amendments made to this section by
section 48 of the Retail Leases
20
(Amendment) Act 2005 only have effect
from the effective date.'.
__________________
24
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Retail Leases (Amendment) Act 2005
Act No.
Part 4--Amendment of Retail Tenancies Act 1986
s. 49
PART 4--AMENDMENT OF RETAIL TENANCIES ACT 1986
49. Definitions
In section 3(1) of the Retail Tenancies Act 1986
insert the following definition--
' "accounting period", in relation to a retail
5
premises lease, means the period of
12 months specified in the lease as the
accounting period for the purposes of the
lease;'.
50. New section 14AA inserted into the Retail Tenancies
10
Act 1986
After section 14 of the Retail Tenancies Act
1986 insert--
"14AA. Notice of the landlord's intentions
concerning renewal
15
(1) This section applies if the tenant under a
retail premises lease does not have an option
under the lease to renew the lease for a
further term.
(2) The landlord must, at least 6 months but no
20
more than 12 months before the lease term
ends, give written notice to the tenant--
(a) offering the tenant a renewal of the
lease on the terms specified in the
notice (including a term setting out the
25
rent); or
(b) informing the tenant that the landlord
does not propose to offer the tenant a
renewal of the lease.
(3) An offer to renew the lease cannot be
30
revoked without the tenant's consent for
60 days after it is made.
25
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Retail Leases (Amendment) Act 2005
Act No.
Part 4--Amendment of Retail Tenancies Act 1986
s. 50
(4) If the landlord fails to comply with sub-
section (2)--
(a) the landlord must give the tenant a
notice containing the same information
as the notice the landlord was required
5
to give under sub-section (2); and
(b) the lease continues (on the same terms
and conditions as applied immediately
before the lease term ends) until--
(i) the day specified in the notice that
10
the landlord is required to give
under paragraph (a) (which must
be at least 6 months after the
notice is given to the tenant); or
(ii) if the tenant gives the landlord a
15
notice under sub-section (5), the
day specified in that notice.
(5) If the landlord fails to comply with sub-
section (2), the tenant may, whether or not
the landlord has given the tenant a notice as
20
required under sub-section (4)(a), give
written notice to the landlord terminating the
lease from a day that is not earlier than the
day on which the term of the lease expires.
(6) This section only has effect from 1 July
25
2006.".
__________________
26
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Retail Leases (Amendment) Act 2005
Act No.
Part 5--Amendment of Property Law Act 1958
s. 51
See:
PART 5--AMENDMENT OF PROPERTY LAW ACT 1958
Act No.
6344.
51. Amendment to section 146 of the Property Law Reprint No. 11
as at
Act 1958 9 May 2004
and
In section 146 of the Property Law Act 1958-- amending
Act Nos
(a) in sub-section (1), after "stipulation in a
5 108/2004 and
lease" insert "or otherwise arising by 18/2005.
LawToday:
operation of law"; www.dms.
dpc.vic.
(b) in sub-section (1), after "condition in the gov.au
lease" insert ", including a breach amounting
to repudiation,";
10
(c) after sub-section (1) insert--
"(1A) A notice served under sub-section (1) in
respect of a breach amounting to
repudiation--
(a) does not constitute, and must not
15
be taken to constitute, an
affirmation of the lease by the
lessor; and
(b) does not affect any right that the
lessor may have by reason of the
20
repudiation.";
(d) in sub-section (3), after "condition" insert
", including any breach amounting to
repudiation,";
(e) in sub-section (4), for "or for non-payment of
25
rent," substitute "or otherwise arising by
operation of law, or for non-payment of rent,
or for any breach amounting to repudiation
which the lessor has accepted as such,";
(f) in sub-section (6), after "accrues" insert
30
"or in respect of which any breach
amounting to repudiation occurs";
27
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Retail Leases (Amendment) Act 2005
Act No.
Part 5--Amendment of Property Law Act 1958
s. 51
(g) in sub-section (7), after "covenant" insert
", including a breach amounting to
repudiation,";
(h) in sub-section (12), after "rent" insert
"whether or not such a breach amounts to
5
repudiation";
(i) in sub-section (13), after "contrary" insert
"but sub-sections (3) and (4) are to be read
subject to the provisions of Part 10 of the
Retail Leases Act 2003".
10
__________________
28
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Retail Leases (Amendment) Act 2005
Act No.
Part 6--Repeal of Small Business Victoria (Repeal) Act 1996
s. 52
PART 6--REPEAL OF SMALL BUSINESS VICTORIA
(REPEAL) ACT 1996
52. Repeal of Small Business Victoria (Repeal) Act 1996
The Small Business Victoria (Repeal) Act 1996
is repealed.
5
29
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
Retail Leases (Amendment) Act 2005
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
30
551361B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005
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